Bronx

Published on: April 5, 2012

Court Decide Child Neglect Case

by Stephen Bilkis

In domestic violence cases, the law states that if an incident of domestic violence occurs in the presence of a child, that the involved parties are charged with the offense of cruelty to children, child neglect, or child abuse. Sometimes, the victim is inadvertently charged with child neglect. In the heat of the moment when handling domestic violence calls, officers are called upon to make immediate judgments. Sometimes, these judgments are made mistakenly and the wrong party is charged in relationship to the incident. The statute orders officers to charge the primary aggressor of the domestic violence assault. Sometimes, it is not immediately clear which party involved in a domestic dispute is the primary aggressor. These calls are complicated and emotionally charged. Many times, officers rely on the court system to sort through the involvements because they will see the incident after everyone has cooled off. Unfortunately, the courts are also overburdened and court officers have the same problems sorting out the issues. This was the case in an appeal that was requested on August 10, 2010.

A young mother was assaulted by her boyfriend in her home in front of her child. The altercation was volatile and police were called to the scene. The officer interviewed the child and the child stated that he was scared and nervous during the assault. Both the mother and her boyfriend were charged with child neglect. A New York Criminal Lawyer said that when the case came to court, social services had already determined that the incidence of domestic violence had been isolated. The boyfriend was determined to be the primary aggressor. The mother had broken her relationship with the boyfriend and the incident was established to have been an isolated encounter.

The mother requested that her case be dismissed since the Family Court had already determined that she was no threat to the child. In fact, they determined that there was no reason to exercise any sanctions. They found that the child was healthy and that his mental and emotional condition was not impaired or in imminent danger of being impaired as a result of what they described as an isolated incident. The court established that the mother exercised good parenting skills and had an excellent relationship with the child. The child demonstrated a desire to continue residing with his mother. They found that the child and mother shared a positive relationship. When this situation was brought to the court’s attention, it was expected that the victim’s request to vacate the neglect case against her would be accepted. However, inexplicably the court refused to vacate her charge and found her guilty. The mother filed an appeal under the Family Court Act §105(c) stating that the agency’s evidence at the hearing failed to establish that any neglect had occurred in relation to this mother and her child. In essence, the state had failed to make their case by a preponderance of the evidence against the mother. The appellate court determined that the judgment in this case was flawed and that the case should have been vacated.

Published on: April 4, 2012

Court Discusses Violation of Order of Protection

by Stephen Bilkis

On 22 February 1997, the defendant, after a parental visit, brought his children directly to his then wife (now former wife) in contravention to a court order of protection (hereinafter COOP). Thereafter, a verbal and physical confrontation occurred between the defendant and his wife. The COOP provided that the defendant was to return his children to the local police station.

The defendant was indicted and tried for crimes involved in this incident and another.

On 24 March 1999 after a jury trial, the defendant was found guilty of assault in the second degree, two counts of assault in the third degree, and two counts of criminal contempt in the first degree.

Published on: April 2, 2012

Court Decides Jurisdiction Issue in Domestic Violence Case

by Stephen Bilkis

The parties met through the Internet in 2003, when the mother was studying veterinary medicine and the father was a teacher studying for a Master of Education degree. The parties married on 5 June 2004, in Kentucky. Six months later, the mother became pregnant, but continued her veterinary studies and graduated in May 2005. Upon graduation, the mother moved to New York, where the father joined her soon thereafter.

A New York Criminal Lawyer said that in September 2005, the mother gave birth, in New York, to twin daughters. On 31 October 2005, both parties and the children moved to Kentucky. In August 2006 the parties purchased a house in Kentucky.

In January 2007 the father commenced an action for divorce in Kentucky Family Court.

Published on: April 2, 2012

Court Decides if Removal of a Child is Necessary in a Domestic Violence Case

by Stephen Bilkis

Three different women were physically abused by their intimate partners or husbands. These three different women all had children who were then living with them at the time that the domestic violence against the women occurred.

These three different women all asked the help of the police and the family court to stop the domestic violence. In all the three cases, the family court issued orders of protection.

In the same family court where these cases for domestic violence were pending, the Administration for Child Services (ACS) all intervened. ACS had a standing policy that all children were removed from the mothers who were victims of domestic violence because even as victims, they are also deemed to have engaged in domestic violence. The ACS contends that the battered woman is negligent when she allowed her children to witness the domestic violence committed against her. The ACS put all the children of these battered women in foster care.

Published on: March 8, 2012

Court Rules on Robbery That Resulted in Death of Victim

by Stephen Bilkis

The defendant was charged and convicted of two counts of murder in the second degree and two counts of robbery in the first degree. This was because he was part of a frustrated robbery where the victim died from a gunshot wound to the neck. One of the testimonies in the hearing said the defendant was part of a group of about fifteen teenagers. They approached the the victim, before he could enter a grocery store. It appeared that the defendant was known in the area for shoplifting and selling what he got. The group waited while he was in the grocery. The crowd moved to the bleachers of a recreation center nearby. One of the teenagers showed off a gun to the group.

Less than an hour later, six of the teenagers went back near the grocery store, and the defendant announced he was going to snatch the victim’s bag. Two of the six left, saying they did not want any part of it. A short time later, the defendant went out of the grocery store and along with his three other companions attacked the victim. The defendant was able to get free and hit the victim with a can while holding him against a wall. He then got his bag and said nothing will be taken from him. A shot was fired, said a New York Criminal Lawyer, and the defendant ran with his bag and the four on his heels. People said they heard about six to eight shots at around the time of the chase. The police did not find a bag with clothing, but found a knit hat and sweatshirt near the grocery store.

The defendant argued that it is impossible to have an attempted robbery in the first degree because one of the requirements is an unintended result of causing physical injury when a robbery is committed. They said that the attempt to commit a crime with an unintended result is not recognized by the law. The court changed the charge to attempted robbery in the third degree.

Published on: March 7, 2012

Defendant Contests Calibration of Breathlyzer in DWI Case

by Stephen Bilkis

The accused man is charged of driving while ability is impaired by alcohol. During the course of his DWI consolidated pre-trial hearings and non-jury trial, the accused team objected to the complainant’s admission of the certified calibration records and simulator solution certificates. An NY Criminal Lawyer said that the challenged documents relate to the breath test instrument used to test the accused man’s blood alcohol level at the time of his arrest. The accused counsel’s challenge was made on the grounds that admission of such business records without the testimony of the analyst who created them violates the law. The Court reserved the decision on the application while completion of the case is pending, at which time the Court granted both parties the opportunity to submit summary of law in support of their respective positions. The Court has considered the several submissions by the counsel in concluding that the certified calibration records are admissible and do not violate the law.

A NewYork Criminal Lawyer said that based on records, the law held that since the Constitution guarantees a criminal accused the right to be confronted with the witnesses against him, the practical application of the law prohibits the introduction of out-of-court statements which are testimonial in nature, unless the accused had an opportunity to cross-examine the person who made the statements.

Records similar to the challenged documents have been admitted routinely for years in State DUI cases if properly authenticated under the State business records in exception to the hearsay rule. Most courts examining the issue in light of the law still held the records to be non-testimonial and therefore admissible without live testimony in accordance to the proper authentication. Addressing the business records hearsay exception, the Court of Appeals also cautioned against the categorical elimination of business records as a basic misreading of the law. A thorough analysis declined to adopt a bright line rule admitting business records without testimony, as facts and context are essential and the question of validity of the testimony requires consideration of multiple factors, not all of equal importance in every case.

Published on: March 7, 2012

DWI Defendant Contends Mistaken Identity

by Stephen Bilkis

A man was stopped at the street for failing to wear a seat belt and operating a vehicle with a cracked front windshield. Upon approaching the vehicle, the police officer noticed that the driver have a glassy eyes. The driver responded to the questions of the police officer with a slurred speech and an odor of alcohol emanated from him. After the man failed the standard field sobriety tests, the police arrested the driver for DWI.

A New York Criminal Lawyer said charges against the driver took place and the bail was set and posted. Subsequently, the man came forward and claimed that he did not drive the vehicle which was stopped by the police officer. The man also claimed that his brother used his license and identity. The man submits an affidavit which indicates that he learned of his brother’s arrest when tickets turned up in the man’s mailbox a couple of days after the arrest. The brother of the man called him a couple of days later according to the affidavit submitted. The brother of the man also advised him that he used the license and was arrested for DWI. While no evidence of identity is offered in support of the motion to dismiss the man, the jury concedes that the man did not operate the vehicle and that his brother did. The acknowledgment by the prosecution of the identity of the driver followed initial findings of the present motion. The initial findings ordered a trial to determine that the man did not operate the vehicle in question and was not arrested due to ambiguities in the submitted papers. The prosecution accepted the point rather than proceed to trial. The decision on the merits of the legal action is rendered.

The overlap of the naming of the man as the accused while charging the person of the man’s brother with violating Vehicle and Traffic Law makes the man an wronged person whose privileges to legally operate a motor vehicle have been suspended. The man therefore has the right to challenge the prosecution with his name, his driver’s license and his identity. A New York Criminal Lawyer said that without the right to come forward and reveal the false use of an identity, the man is plagued with the misdemeanor and with potential effects of a conviction. Prosecuting the brother of the man essentially leaves the brother to invest only his time while the man receives the penalties accruing by fines, suspension and revocation of his license.

Published on: March 6, 2012

Court Rules Where DWI Offender Refuses Chemical Test

by Stephen Bilkis

A traffic officer responded to a radio run of an automobile accident at Roosevelt Avenue and Queens Boulevard. When he arrived at the scene, the accused was standing beside an automobile which had been involved in the car accident. The traffic officer testified that the accused had bloodshot eyes, was unsteady on his feet and had the odor of alcohol on his breath. A witness to the accident told the traffic officer that he had seen the accused driving the car. There was no testimony that any other person was observed to be in or around the automobile.

A New York Criminal Lawyer said the accused spoke Spanish and apparently understood little or no English. The traffic officer obtained a driver’s license and other documents bearing the accused man’s name but he was unable to recall whether the documents were given to him by the accused or if they were discovered in the automobile. The accused was placed under arrest and was taken to into the precinct.

A police officer testified that he was called to the precinct to conduct an Intoxicated Driver’s Exam on the accused. In the presence of the traffic officer and the police officer, the accused was shown a Spanish language videotape intended to apprise him of the charges against him and to inform him of the repercussions of refusing to submit to a chemical test analysis or breathalyzer test. The Spanish language tape was translated for the Court by the court interpreter. Such is the only interpretation before the Court as neither the jury nor the accused called an expert witness to translate the videotape.

Published on: March 6, 2012

Court Decides Use of Breathalyzer Under Business Records Exception

by Stephen Bilkis

Initially, the court held that records reflecting the calibration of breath test machine and analysis of breath test simulator solution used in DWI cases were non-testimonial hearsay and admissible over confrontation clause objection under business records exception. The certifications to be submitted for the calibration or maintenance of the breath test instrument and the analysis of the Breath Alcohol simulator solution used in the breath test instrument are either testimonial or non-testimonial in nature. When proven to be testimonial then the complainant must bring in the analyst. If it is non-testimonial, the complainant may lay the basis for introduction of the records.

Testimonial statements are material such as affidavits, custodial examinations, extrajudicial statements, depositions, prior confession, prior testimony that the accused was unable to cross-examine, similar pretrial statements, formalized testimonial materials and statements that were made under circumstances that the complainant would reasonably expect to be used in the later trial.

A New York Criminal Lawyer said the Supreme Court deliberately left for another day any effort to spell out a comprehensive definition of testimonial. The Court does say that when a non-testimonial hearsay is at issue, it is wholly consistent with the design to afford the states flexibility in their development of hearsay law. The Supreme Court’s analysis of testimony excludes some hearsay exceptions, such as business and official records. To hold otherwise would require numerous additional witnesses without any apparent gains in the truth-seeking process. After all, cross-examination is a tool to flesh out the truth, not an empty procedure.

Published on: March 6, 2012

Defedant Contends Illegal Stop in DWI Case

by Stephen Bilkis

A police officer and his partner were on routine patrol at one of the intersections in Queens County. The officers noticed the woman driving a grey Cadillac passed through a steady red light. The other officer pulled the vehicle over and as he approached, the woman rolled down her window. As the officer requested the woman’s license and registration, he noticed that she had bloodshot, watery eyes, and also detected the strong smell of alcohol on the woman’s breath. The officer further observed that the woman seemed disoriented and unaware of her surroundings. The officer requested the woman to step out of the vehicle, at which he also noticed that the woman was unsteady on her feet. The officer placed the woman under arrest. As the officer was escorting the woman to the squad car, she became very loud and argumentative towards the officer.

According to a New York Criminal Lawyer, the woman was brought to the Precinct Intoxicated Drivers Testing Unit (I.D.T.U.) for the purposes of performing chemical testing. The woman was immediately brought to the basement of the precinct where the breathalyzer testing is performed. Present at the testing site were the arresting officer, his partner and two other officers of the precinct. At no time were Miranda warnings given to the woman by the arresting officer.

The officer of the precinct confirmed that he was the officer responsible for administering the breathalyzer test to the woman. The officer also alleged that he has six years of experience with the I.D.T.U., and has conducted six hundred of such tests at a rate of approximately thirty per month.